Commentary: Some scenarios on detainee cases
on Mar 23, 2007 at 10:03 pm
(NOTE: As of 10 p.m. Friday, the Supreme Court has issued no orders on any matters considered in the Conference earlier in the day, and thus none now are expected until Monday morning. Only insiders at the Court know what the Justices have decided and will announce after the weekend. The reader thus is on notice that any report on the Conference is, at worst, pure guesswork or, at best, informed speculation.)
Lawyers for detainees involved in two major cases testing the legal rights — if they have any — of captives at Guantanamo Bay, Cuba, go into the weekend with no reliable indications of the course those cases will now take. The Court on Friday had its first look in private at some aspects of the appeals in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). The wide public and press interest in those cases, and their importance to the legal conflict over the war on terrorism, leads naturally to close monitoring of their progress.
It is possible to indicate what is known, and to suggest some options that may unfold in coming days and weeks.
First, what is known factually:
Before the private Conference opened on Friday, the Court had most if not all of the papers that are to be filed before the Justices make up their minds how to proceed initially. These materials included the two petitions for review, the federal government’s opposition to review of either, the detainees’ replies to that opposition, the detainees’ motions to put the cases on a fast track for decision this Term, the government’s opposition to expedition, and the detainees replies to that opposition. The Court’s electronic docket showed that nearly all of these had been distributed to the Justices overnight or early in the day Friday. The docket did not indicate whether two amicus briefs filed with the cases had been distributed.
The Court ended the day Friday with no orders issued. Any response to the two cases will be known — at the earliest — on Monday, shortly after 10 a.m. when the Court issues an Orders List.
What are the options, beginning with Monday?
The array of options in coming days:
1. The Court could say nothing on Monday, either about expedition or about review of the cases on the merits. Silence on the expedition issue would probably leave that question for likely consideration again at next Friday’s Conference.
It would be no surprise if the Court were silent on the petitions themselves. It had not been expected to consider the petitions at Friday’s Conference, at least as the electronic docket showed until Thursday afternoon. Rather, it appeared that only expedition would be considered. The detainees, in fact, had asked the Court to take up the petitions on March 30. However, the disclosure of additional distribution late Thursday raised the prospect that the petitions, too, might be examined.
If Monday’s Orders List shows nothing on the petitions, then the electronic docket will be watched to see if they are to be considered next Friday. That indication likely would come early next week, under normal procedures.
2. The Court could grant expedition on Monday. That would still not assure that the Court was going to review the cases this Term, but it could be fairly interpreted as a positive sign. An expedition order conceivably could set a merits briefing schedule — predicated on the condition that review were granted at an early Conference. If a merits briefing schedule were not included, the electronic docket would then be watched to see when the cases are to be considered for a grant. A grant at that later point almost surely would include a speeded-up briefing schedule, including a hearing date this Term — indicating a decision before the summer recess.
3. The Court could grant expedition and also grant review on Monday. A merits briefing schedule probably would be included in the order, and a decision this Term would become a virtual certainty.
4. The Court could deny the motions for expedition on Monday. That very likely would mean that the cases, even if granted review following the March 30 Conference, would not be heard and decided until the next Term, starting Oct. 1. Here is why: assuming a grant is announced either on March 30 or on Monday, April 2, the cases likely would not be scheduled for oral argument in the current Term because the normal running of the briefing calendar (under Rule 25) is 115 days. From April 2, there would be about 90 days left in the current Term. The parties, of course, could shorten the schedule by filing earlier than their specified deadlines, but probably would have little incentive to do so. A denial of expedition would be a clear signal that the Court did not want to move promptly on the cases, so would be unlikely to schedule oral argument after the final argument day now on the calendar — April 25.
5. The Court could deny the motions to expedite on Monday, and deny review of the petitions. That would scuttle these cases, indicating that Congress had succeeded in denying all federal courts — including the Supreme Court — any authority to hear any detainees’ habeas challenge, whether the detainee was at Guantanamo or in U.S. custody anywhere else in the world (except perhaps inside the U.S. itself). That also would send these detainees back either to (a) the D.C. Circuit Court for a more limited review of detention than would be available under normal habeas procedures, or (b) status review proceedings run by the military at Guantanamo Bay, Cuba. This outcome would also ensue if the Court were to grant expedition, and then deny review on the merits. The detainees’ fate at that point would depend upon efforts among some Democrats in Congress to pass a bill to restore habeas rights — efforts that, if successful, probably would encounter a veto by President Bush.
